Or at least James Scott Boyd and his small number of supporters want it to be. But there is much opposition.
It is an interesting saga with large implications no matter how it turns out.
Le’t us start by
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THE APPELLANTS
The current Appellants are participants in the LRGA, who collectively claim Rights, as successors to both the Rights appropriated under the Acts by RGD&IC, a New Mexico corporation, commencing on January 12, 1893, by NM’s RBD and diversions created prior to 1893 by NM’s PAD.
STATEMENT OF JURISDICTION
A. Basis for the District Court’s subject-matter jurisdiction.
The statutes and treaties bearing on the federal questions in this case include:
1. 28 U.S.C § 1331 (federal question jurisdiction).
2. The Treaty of Guadalupe Hidalgo of 1848.
3. The Act.
4. The Reclamation Act of June 17, 1902, 32 Stat. 388 (1902)
codified as 43 U.S.C. § 371 et seq.
5. The federal Declaratory Judgment Act, 28 U.S.C. §2201(1), which allows a parallel federal declaratory action to be heard during pendency of a concurrent state court action, see Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976); Brillhart v. Excess Ins. Co., 316 U.S. 491, 495, 62 S. Ct. 1173, 1177 (1942); State Farm Fire & Casualty Co. v. Robert Ray Mhoon, 31 F.3d 979 (10th Cir. 1994); In re Application for Water Rights of United States v. Colorado State Engineer, 101 P.3d 1072 (Colo. 2004) (allowing concurrent jurisdiction where federal questions are not being addressed in state court proceeding).
6. The McCarran Amendment, 43 U.S.C. § 666 (1952).
7. U.S. Const., Amendments No. 5 and 14.
B. Basis for the Court of Appeals’ Subject-Matter Jurisdiction.
28 U.S.C. 1291.
C. Filing Dates and Orders Establishing Timeliness of Appeal.
1. On September 4, 2014, Claimants’ filed their Motion to Lift Stay, Exceed Page Limit and Intervene (Aplt. App. at 100).
2. On October 20, 2014, the U.S. District Court filed its Memorandum Opinion and Order Denying James Scott Boyd’s (“Boyd”) Renewed Motion and Claimants’ Motion to Intervene (Aplt. App. at 188).
3. On November 17, 2014, Appellants filed Boyd and Claimants’ Motion to Reconsider (Aplt. App. at 205).
4. On December 2, 2014, the U.S. District Court entered its Memorandum Opinion and Order Denying Boyd and Claimants’ Motion to Reconsider (Aplt. App. at 224).
5. On December 31, 2014, Claimants filed their Notice Of Appeal (Aplt. App. at 233).
STATEMENT OF THE ISSUES
Issue 1: There are important federal questions that the District Court failed to acknowledge or address that support federal jurisdiction.
A. Denying Appellants the opportunity to protect their Rights in state proceedings raised the federal issue of denial of due process.
B. The 1903 proceeding was a sham proceeding to deprive Appellants’ Rights and as such was a nullity.
C. The District Court erred by not applying the doctrine of unclean hands to bar the United States’ repetitive use of litigation to prevent Appellants from establishing their claims.
D. The District Court failed to recognize and apply the federal Act of March 3, 1891, in a full and fair trial on the merits.
E. The 1903 court lacked jurisdiction over Appellants, the subject matter and the specific issue, so its purported forfeiture of Appellants’ Rights was a nullity.
Issue 2: The District Court improperly applied res judicata to bar appellants’ claims in this case.
Issue 3: The Colorado River Doctrine does not Support abstention in this case.
Issue 4: The state court and the District Court erred by not applying N.M. statutes and law.
Issue 5: The District Court erred in its Application of the Reclamation Act.
Issue 6: The state courts and USDC erred when they did not view the Appellants’ evidence in its best light and as well-pleaded.
Issue 7: The state court and the District Court through their orders have improperly narrowed the scope of the adjudication, caused delays and procedural inadequacies and created piecemeal litigation in the state adjudication in violation of the McCarran Amendment.
Issue 8: The District Court misapplied fraud in this case. The United States’ actions amounted to a scheme to trespass on Appellants’ property and has unclean hands.
STATEMENT OF THE CASE
The state adjudication has been delayed for 19 years because the state courts and the USDC(“Courts”) favor U.S. control over the waters of the RG. This has resulted in the Courts failing to follow proper adjudication requirements and established law in determining who owns the project Rights in accordance with N.M.’s PAD. The adjudication has become delayed due to the efforts by the U.S. and the state courts and the USDC to procedurally prevent Appellants’ judicial efforts to establish their Rights, to create a record, to consider Appellants’ evidence, and by denying Appellants a full trial on the merits to establish their Rights or attack the sufficiency of the U.S.’ claimed appropriation of project rights. The state adjudication has separated Boyd from all other claimants by depriving them the right to collectively claim their Rights as tenants-in-common. Litigation over the Rights has spanned the last 118 years and has been marked by continuous efforts by the U.S., in some cases with the cooperation of courts, to deny Appellants’ right to a full and fair trial and an opportunity to establish their Rights, amounting to collateral fraud.
The four main questions that Appellants would appreciate the Court addressing in this appeal include:
1. Whether the Appellants appropriated Rights by completion of works under the Acts?
2. If it is determined that Appellants completed works, whether Appellants’ Rights could not have been forfeited in 1903 due to the U.S.’ scheme to forfeit Appellants’ rights by preventing RGD&IC from constructing its dam by denial of due process, and repetitive improper litigation amounting to unclean hands and constituting a sham?
3. Whether the 1903 proceeding was a nullity because the Court lacked in personam and subject-matter jurisdiction of Appellants’ Rights?
4. Whether the District Court and the state courts in the present adjudication have caused delay and procedural inadequacies by not applying New Mexico’s Prior Appropriation Doctrine and other New Mexico laws and misapplying res judicata.
Appellants have alleged in the USDC below that the U.S. initiated a scheme at the highest levels of government from 1896 to 1909 “to obtain an injunction to prevent the RGD&IC from constructing and maintaining a dam across, and a reservoir over and near, the RG by claims of navigation.” RGD&IC v. United States, 215 U.S. 266, 267, 30 S. Ct. 97, 54 L. Ed. 190 (1909), so the U.S. could take control of the RG floodwater RGD&IC appropriated in 1893 to build its planned International Dam at El Paso (Aplt. App. at 30-63). RGD&IC’s impediment to navigation has never been proven in a court of law nor a final decision on completion under the Act.
The historic facts stated below and found in Aplt. Prop. Supp. App. demonstrate that Appellants share the Rights as tenants-in-common with a January 12, 1893 priority and appropriation date, which is senior to any date advanced by the U.S. for its Rio Grande project in Stream Issue 104 in the State adjudication.
RGD&IC was issued a federal right-of-way pursuant to the Act on February 1, 1895, allowing RGD&IC to capture all the floodwater of the RG at Elephant Butte (Aplt. Prop. Supp. App. at 66). Starting in 1896 a group of land speculators in El Paso, who proposed to build a dam at El Paso, influenced the U.S. to initiate a scheme to forfeit RGD&IC’s right-of-way to prevent RGD&IC’s construction of EBD dam for five years through improper litigation by advancing an allegation that the RG was a navigable stream and that RGD&IC’s dam “substantially diminishes the navigability of the stream,” RGD&IC v. United States, 215 U.S. 266, 267 (1909), thus requiring RGD&IC to obtain permission to build the obstruction to navigation from the Secretary of War as required by the River and Harbor Act of September 19, 1890, who would refuse to issue the permit. The U.S.’ scheme to block RGD&IC’s construction of its dam EBD succeeded in preventing any adjudication, and launched 118 years of litigation over the ownership of the project rights for the LRG. Many of the facts of the evolution and implementation by the U.S. of its scheme to prevent RGD&IC’s construction of its project have been found (Aplt. Prop. Supp. App. at 76-87, 100-149, 175-192, 208-209, 216, and 226).
The following is a short history of some of the improper litigation.
The litigation actions included the U.S. filing suit in 1897 for an injunction to stop RGD&IC’s construction of its dam by a navigation theory that it knew was not valid for several reasons, mainly because the U.S. knew the RG was non-navigable and because the U.S. intended to dam the RG at a point 125 miles below RGD&IC’s to capture the same RG floodwater, thus causing the same impediment to navigation as RGD&IC’s dam.
The U.S.’ scheme was immediately transparent to the Territorial district court, which dismissed the suit. The NM Supreme Court affirmed the dismissal of the U.S.’ suit, 9 N.M. 292, 51 P. 674, but the U.S. appealed to the U.S. Supreme Court, which reversed and remanded the case. United States v. RGD&IC, 174 U.S. 690 (1899). The navigation theory was tried in a full trial in 1901, in which the U.S. lost again, but the U.S. appealed again to the U.S. Supreme Court, which reversed on equitable grounds that the Territorial court should have granted the U.S.’ request for a 3 month continuance to prepare for trial. United States v. RGD&IC, 184 U.S. 416 (1902).
While U.S. Attorney for New Mexico, William Childers, was litigating on behalf of the U.S. in United States v. RGD&IC, supra (1898) over navigation, he formed AL&IC, an irrigation company in Albuquerque, under the same Acts that RGD&IC had relied upon to appropriate the same RG floodwater, Albuquerque Land & Irrigation Co. v. Gutierrez, 10 N.M. 177, 61 P. 357 (1900), affirmed, in Gutierres v. Albuquerque Land & Irrigation Co., 188 U.S. 545 (1903), which stated:
It is insisted that the complainant company does not intend to construct a reservoir or reservoirs for the purpose of storing surplus water, nor has it the means to do so. The statute certainly authorizes such companies to do so. The charter of this company provides for such construction. Mr. Childers, one of the incorporators, testifies that it is the intention of the company to construct reservoirs if it becomes necessary to do so.
10 N.M. at 186, 61 P. at 366.
Territorial Judge Frank W. Parker participated in the U.S.’ plot to deprive Appellants’ Rights in two different ways. In May 1900 when Parker concurred in AL&IC v. Gutierrez, supra, he knew his decision granting all the floodwater in the RG to AL&IC was error because he had previously dismissed the U.S.’ complaint against RGD&IC in January 1900 in United States v. RGD&IC, 10 N.M. 617, 65 P. 276 (1900) and, therefore, knew RGD&IC had previously appropriated all the RG floodwater, United States v. RGD&IC, 10 N.M. 617, 65 P. 276 (1900). Alternatively, if navigation was an issue in U.S. v. RGD&IC, Id. why was it not in AL&IC v. Gutierrez, supra?
In fact, Parker relied on the decision in United States v. RGD&IC, 174 U.S. 690 (1899) to support AL&C’s right to appropriate all the floodwater of the RG. AL&IC v. Gutierrez, 10 N.M. at 641, 61 P. at 360.
U.S. Attorney for New Mexico William Childers must have known the U.S’ navigation claim he was prosecuting against RGD&IC in United States v. RGD&IC to stop its capture of RG floodwater was a sham because he did not seek the approval of the Secretary of War for AL&IC’s dam and he did not feel restrained by the Department of Interior Embargo against issuance of dam rights-of-way (Aplt. Prop. Supp. App. at 81-82). The U.S. had received compelling evidence, that Childers probably knew, that the RG was not navigable (Aplt. Prop. Supp. App. at 83-84). Childers never disclosed in AL&IC v. Gutierrez (1900) and Parker never raised the issue that AL&IC’s proposed reservoir would create the same impediment to navigation that the U.S. was simultaneously claiming prevented RGD&IC’s construction of EBD.
Likewise, Judge Frank Parker failed to raise the issue that RGD&IC’s prior appropriation prevented AL&IC from appropriating the RG floodwater or that AL&IC could not build a dam due to the 1896 Embargo (Aplt. Prop. Supp. App. at 81-82).
The opposite results in the United States v. RGD&IC litigation from the AL&IC litigation (the same two persons litigating the approval of AL&IC’s appropriation without mentioning navigation while stopping RGD&IC’s by navigation) only makes sense if you can eliminate the prior appropriation of RGD&IC and the applicability of the River and Harbor Act to a second dam on the Rio Grande and the prohibition to issuance of federal rights-of-way presented by the 1896 Embargo. Parker’s affirming AL&IC’s right to capture all RG floodwater in 1900 implicates Parker and Childers in the U.S.’ plot to forfeit Appellants’ rights, AL&IC v. Gutierrez (1900).
Finally in 1903, after the New Mexico and United States Supreme Courts approved AL&IC’s appropriation of all the RG floodwater, Gutierres v. AL&IC (1903), the U.S. instituted the final step in its scheme to gain control over Appellants’ Rights. With the encouragement and collusion of the Territorial Irrigation Commission, see Aplt. Supp. App. at 188-189, 190-192, 208-209, Childers sought and got permission from the U.S.’ Special Assistant Attorney, M.C. Burch in Washington, D.C., to amend the U.S.’ Complaint to seek forfeiture based upon the U.S’ repetitive litigation having prevented RGD&IC’s construction of EBD for over five years.
Childers then conspired with A.B. Fall and Hawkins, the attorneys of record for RGD&IC, and Judge Parker to create a purported procedural default forfeiting Appellants’ Rights by the U.S. filing a Supplemental Complaint, to which RGD&IC’s attorneys did not respond, thus creating a purported forfeiture by default. The Supplemental Complaint falsely alleged that RGD&IC had failed to complete “within the period of five years after the location of said canal and reservoir any part or section of the same, and the same has, by reason thereof, become forfeited.” RGD&IC & RGI&LC v. U.S., 215 U.S. 266, 269, 30 S. Ct. 97, 54 L. Ed. 190 (1909). Parker and the attorneys knew that the U.S.’ litigation had put RGD&IC out of business by 1900 and that RGI&LC’s assets, including its right-of-way easement, had been conveyed in 1900 in liquidation to Dr. Nathan Boyd as receiver for RGI&LC ‘s debenture holders; so after 1900 neither RGD&IC nor RGI&LC owned any Rights. RGI&LC, Ltd. v. United States, RIAA, Vol. VI, pp. 131-38, 135, 28 November 1923, United Nations, 2006.
To prevent the landowners from participating in the litigation to protect their Rights, Judge Parker denied the Territory’s Petition to Intervene on behalf of the landowners in 1902 (Aplt. Prop. Supp. App. at 174).
To prevent Boyd from litigating to protect the debenture holders’ Rights, U.S. Attorney Childers waited to file his Amended Complaint until Boyd was out of New Mexico at the bed of his dying wife (Aplt. Prop. Supp. App. at. 188-189). To avoid a record, the U.S. and Parker conspired to deny any request to set aside the default (Aplt. Prop. Supp. App. at 216) and RGD&IC v. United States at 274 (1909).
As soon as Boyd gained knowledge of the default, he returned to NM, and filed a Motion to Set Aside the 1903 default and thereafter appealed to the U.S. Supreme Court. After acknowledging that the U.S. filed its suit to prevent RGD&IC “from constructing and maintaining a dam across, and a reservoir”, RGD&IC v. United States at 267 (1909), the U.S.Sup.Ct. affirmed the 1903 default judgment. RGD&IC v. United States at 278 (1909). The U.S.Sup.Ct. is implicated as a participant in the U.S.’ scheme to forfeit Appellants’ Rights. How else could the U.S.Sup.Ct relieve the U.S. of any injustice from the judgment against the U.S. in 1902 and not also relieve Boyd of any injustice from the default judgment against RGD&IC in 1903, United States v. RGD&IC, 184 U.S. 416, 22 S. Ct. 428, 46 L. Ed. 619 (1902), stating at 423: “But there are other considerations which may be properly made the basis for the reversal of the decree to the end that injustice may not be done.”?
The U.S.’ has relied upon the purported 1903 forfeiture from 1909 until the present adjudication to bar the litigation of Appellants’ claims of ownership in a full due process hearing, Boyd v. United States, Fed. Cl. No. 96-47L (slip op. Apr. 21, 1997). Since the 1903 proceeding is so important, it must be examined carefully to see it if met the requirements of due process and the federal Act of March 3, 1891, to merit it being the basis of precluding Appellants’ claims.
State Adjudication History
The Claimants have tried to litigate their collective Rights without success (Aplt. Prop. Supp. App. at 385-449, 604-35, 696-770).
On February 24, 2012, the NMDC, after confirming Boyd’s allegation that RGD&IC completed a diversion dam at Fort Selden and the Leasburg Canal (Aplt. Prop. Supp. App. at 362-79), dismissed Boyd’s claims. After Boyd’s dismissal, the Claimants tried to intervene into Boyd’s appeal but were denied (Aplt. Prop. Supp. App. at 604 to 635), and Claimants proceeded alone in the state adjudication.
On February 17, 2014, the NMDC granted all Rights to the U.S. and denied Claimants’ Motion for Summary Judgment in opposition to the U.S.’ claims (Aplt. Prop. Supp. App. 456-61, 636-52) without a trial, by finding Claimants’ evidence (Aplt. Prop. Supp. App. at 25-59, 66, 88-92, 174, 188-89, 208-09, 213-15, 221-23, 227-30, and 237-49) failed to raise any genuine issue of material fact (Aplt. Prop. Supp. App. at 456-61).
The Claimants appealed the NMDC’s February 17, 2014, Summary Judgment Order (Aplt. Prop. Supp. App. at 771. The NMCA filed an opinion on February 2, 2015, affirming the NMDC’s separation of Claimants from Boyd’s claims (thereby denying Appellants’ collective claim to Rights) and dismissing Claimants’ appeal (Aplt. Prop. Supp. App. at 456-61). In its February 2, 2015 opinion, the NMCA also denied another appeal by Claimants of the NMDC’s order denying their Motion to Stay Proceedings until all Pre-1906 Claims are Determined (Aplt. Prop. Supp. App. at 462-75, 839-913). The NMCA’s February 2, 2015, opinion is a final order dismissing Claimants’ collective claim to Rights, thus subjecting the Claimants to a multitude of sub-file proceedings and inter-se proceedings for all adjudication claimants, which will delay determination of Appellants’ collective Rights withRGD&IC in the adjudication for decades (Aplt. Prop. Supp. App. at 913).
On January 14, 2015 the NMSC entered its Order denying Boyd’s Petition for Certiorari appealing dismissal of Boyd’ Rights (Aplt. Prop. Supp. App. at 922).
This case now stands where it stood in 1998 or 1909, still needing to answer the question, “Did RGD&IC complete irrigation works under the Act?” This issue should not be addressed in sub-files because it is a global issue that affects the priority date of every LRG claimant (Aplt. Prop. Supp. App. at 306) and because it only involves two parties, Appellants versus the U.S. There is no reason to create further delay by separating Claimants into sub-files and dismissing Boyd (Aplt. Prop. Supp. App. at 385-449, 604-35). No other claimant to the Rights has appeared in the last 19 or 118 years, so a trial between the two claimants to Rights should resolve the issue forever (Aplt. Prop. Supp. App. at 385-449, 604-35).
Federal Litigation History
Boyd filed his motion to intervene in 1998 in the USDC action, and participated as a de facto party in the case below (Aplt. Prop. Supp. App. at 64-65), and was a defendant in the appeal to this Court in 2002, United States v. City of Las Cruces, 279 F3d. 1170 (2002). Boyd’s 1998 memorandum alleged many of the same facts and issues (Aplt. App.at 30-63) that Appellants alleged in their Motions to Lift Stay (Aplt. App. 100-204). In 1999, the USDC ordered an evidentiary hearing and began considering Boyd’s rights under the Act (Aplt. App. at 64, 65).
After this Court’s decision in United States v. City of Las Cruces, the USDC stayed No. 1:97-803, stating, “It is Further Ordered that should further proceedings become necessary or desirable any party may initiate proceedings as though the case had not been closed for administrative purposes.” (Aplt. App. at 99). During the pendency of this case the USDC ruled in Rio Grande Silvery Minnow v. Keys, 356 F.Supp. 2d 1222 (N.M. 2002) that the U.S. owned the RG Project, which was then and still is a disputed fact creating a conflict with Appellants’ claims in this case.
Early History of the Case
Since at least 1844, landowners have appropriated title to water and ditches in the LRG. In 1893 RGD&IC was formed by LRG citizens to build a modern irrigation system. Evidence demonstrates that RGD&IC’s Leasburg Dam and Canal were completed and connected to the three main ditches in the LRG (Aplt. Prop. Supp. App. at 88,90, 92, 93-99).
Also, Boyd v. United States, U.S. Ct. Cl., No. 96-476L, filed April 21, 1997, at 2, after carefully considering the facts, found:
[I]n 1896, construction on a dam called the Leasburg Diversion Dam and Canal was completed and construction began on the Elephant Butte Dam.”
The NMDC confirmed that Boyd presented evidence of completion of a Diversion Dam and the Leasburg Canal in 1896.(Aplts’ Prop. Supp. App. at 366).
There is also strong evidence that RGD&IC commenced or was commencing construction of its EBD (Aplt. Prop. Supp. App. at 86), which appears to have prompted U.S. action to seize Appellants’ right-of-way and Rights by improper litigation.
There is also evidence of irrigation using RGD&IC’s Canal and Dam (Aplt. Prop. Supp. App. at 221-223) before the U.S. rebuilt RGD&IC’s diversion in 1908.
Recently several historians have examined the facts surrounding the seizure of Appellants’ predecessors’ Rights and they have all come to the same conclusion: the U.S. plotted and took actions that prevented RGD&IC from building its irrigation system. See David Holtby, Aplt. Prop. Supp. App. at 250-57 (U. Okla. Press, 2012). ; Douglas Littlefield, Conflict on the Rio Grande at 33-78 (U. Okla. Press, 2008).
Several U.S. employed historians have reached the same conclusion. Robert Autobee, at 6 (Aplt. Prop. Supp. App. at 259-92) states, “The State Department blocked RGD&IC with lawsuits, before the Supreme Court ruled against the dam promoters. RGD&IC’s work was stopped in April 1897, because of the burdens of too much litigation, an inability to receive construction permits, and dwindling funds.” Dr. Gahan, the U.S.’ expert witness in the state adjudication, in his deposition on March 3, 2015, also confirmed that the U.S. prevented RGD&IC from constructing its irrigation system (Aplt. Prop. Supp. App. at 295-305).
For additional proof of U.S. actions to prevent RGD&IC from completing its works see Corps of Engineers Letter dated Feb. 5, 1897, stating that the RG is not a navigable river (Aplt. Prop. Supp. App. at 83-84). This shows that the U.S. knew the Rio Grande was not navigable before it filed suit. The U.S. also knew before it filed its lawsuit against RGD&IC on June 19, 1897, that there was no need for the U.S. to build a dam to store and deliver water to Mexico, because RGD&IC already planned to store and deliver water on both sides of the RG as far south as Fort Quitman, as stated in its 1896 prospectus (Aplt. Prop. Supp. App. at 104).
Likewise, S. Doc. No. 229(Aplt. Prop. Supp. App. at 100) demonstrates that the U.S’ intention by 1896 was to construct the International Dam at El Paso and prevent RGD&IC and RGI&LC from constructing their dam at EB. On page 100 of Aplt. Prop. Supp. App. is the Message of President McKinley dated April 7, 1898, which refers to correspondence between Departments of Interior, War, the Justice Department and the Secretary of State to Mexico. On page 41(Aplt. Prop. Supp. App. at 140) are the joint commission’s recommendations. No. (2) is to construct the International Dam at El Paso and No. (5) is to prevent the construction of any large reservoirs on the Rio Grande in the Territory of New Mexico. See Holtby at 125-28 (Aplt. Prop. Supp. App. at 250-58).
President McKinley’s speech (Aplt. Prop. Supp. App. at 100) confirms that the U.S. intended to dam the Rio Grande at El Paso, about 120 miles south of EB, while at the same time it was litigating with RGD&IC to stop construction of RGD&IC’s EBD, in reliance on the two false theories stated above, namely: (1) the RG was a navigable stream, and (2) damming the Rio Grande would impede commercial navigation. This evidence shows officials at the highest levels of U.S. and Territorial government were actively engaged in a plan to stop RGD&IC from building its dam at Elephant Butte as early as 1896 (Aplt. Prop. Supp. App. at 100-149).
For evidence confirming RGD&IC’s initiation to build EBD see Anson Mills’ February 6, 1897, letter (Aplt. Prop. Supp. App. at 85-87) describing a lengthy conversation with Secretary Francis about RGD&IC’s plans to commence construction of EBD.
Shortly thereafter, on April 7, 1897, the U.S instituted the injunctive litigation against RGD&IC (Aplt. Prop. Supp. App. at 213).
When the Secretary of Interior determined that he could not revoke the right-of-way easement the U.S. issued to RGD&IC, the U.S. was left with no choice but to create improper litigation to stop RGD&IC from completing construction of its dam and irrigation system. See Littlefield, supra at 53-55.
Boyd also introduced Secretary of Interior’s letter to Secretary of State, dated February 17, 1903, stating, “If the controversies over the Elephant Butte case have been practically ceased, as I understand they have, it is highly probable that we can begin investigations of water storage on the Rio Grande. I am making plans to this end and if nothing interferes, hope that I can push forward work on that river.” (Aplts’ Prop. Supp. App. at 191). This statement indicates that the U.S. knew on February 17, 1903, that it was going to initiate the procedural forfeiture scheme by filing the Amended Complaint that was filed on April 7, 1903, and intended to survey for its own dam at the RGD&IC’s EBD site. The Department of Interior sent a survey team to trespass on Appellants’ EBD site to survey it for a U.S. dam on March 1, 1903, because RGD&IC’s right-of-way was not forfeited until May 21, 1903 (Aplt. Prop. Supp. App. at 213).
The U.S.’ improper litigation preventing RGD&IC from building its dam and finally its sham procedural action to terminate Boyd’s federally issued right-of-way in 1903 are well documented (Aplt. Prop. Supp. App. at 85-87, 188-89, 190-93, 208-09, 216).
The scheme by the U.S. to prevent RGD&IC from completing its irrigation system was confirmed by Dr. Gahan (Aplt. Prop. Supp. App. at 298).
ARGUMENT
Standard of Review
Since all the District Court’s errors relate to its decision to dismiss the Appellants’motions without a trial, they amount to orders on summary judgment. In reviewing an order on summary judgment, we examine the whole record, considering the facts and drawing all reasonable inferences in a light most favorable to the non-moving party, Potter v. Pierce, 2015-NMSC-002 {8}.
“Whether the elements of claim preclusion are satisfied is a legal question, which we [also] review de novo.” Potter v. Pierce , 2015-NMSC-002 {8}, citing Kirby v. Guardian Life Ins. Co. of Am., 2010-NMSC_014, ¶61, 148 n.M. 106, 231 P.d 87.
Argument
Issue 1: There Are Important Federal Questions that the USDC Failed to Acknowledge or Address that Support Federal Jurisdiction.
As the U.S. Supreme Court found in Moses Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 26, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983): “Although in some rare circumstances the presence of state-law issues may weigh in favor of that surrender, see n. 29, supra, the presence of federal-law issues must always be a major consideration weighing against surrender.”
A. The NM courts’ denying Appellants the opportunity to establish their Rights in a full and fair trial, raised the federal issue of denial of due process. U.S. Const. amend. 14.
Likewise the state and federal district courts’ application of res judicata to bar Appellants’ claims without providing them a full and fair opportunity to present evidence and cross-examine witnesses amounts to a denial of due process. Potter v. Pierce, supra at 1.
The facts of this case are identical to those raised as to finality in Moses Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1,10-11, 103 S. Ct. 927, 74 L. Ed. 2d 765, which found that a stay of a federal suit pending resolution of a state court’s suit “meant that there would be no further litigation in the federal forum; the state court’s judgment on the issue would be res judicata.” and that, “A district court stay pursuant to Pullman abstention is entered with the expectation that the federal litigation will resume in the event that the plaintiff does not obtain relief in state court on state-law grounds.”
Therefore the USDC’s order dismissing Appellants’ Motions to Lift Stay was error because it denied Appellants any opportunity to establish their Rights under the Act, after the state courts decreed Boyd has no claims to water rights and had decreed that Clamants share no Rights as tenants-in-common , thus denying Appellants any relief under state law in the adjudication.
Without action by this Court the NMDC will proceed to adjudicate the priority date for the Rights it granted the U.S. and never again consider Appellants’ Rights under state law, which makes the USDC’s dismissal of Appellants’ motions a res judicata decision and prevents Appellants an opportunity in a full trial on the merits to protect their Rights.
When a district court decides to dismiss or stay under Colorado River, it presumably concludes that the parallel state-court litigation will be an adequate vehicle for the complete and prompt resolution of the issues between the parties. If there is any substantial doubt as to this, it would be a serious abuse of discretion to grant the stay or dismissal at all. McNeese v. Board of Education, 373 U.S. 668, 674-76, 83 S.Ct. 1433, 1437-38, 10 L.Ed.2d 622 (1963). Thus, the decision to invoke Colorado River necessarily contemplates that the federal court will have nothing further to do in resolving any substantive part of the case, whether it stays or dismisses. See 17 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4247, at 517-19 (1978).
Moses Cone Memorial Hospital v. Mercury Construction Corp., supra at 28.
Since the state courts have dismissed any consideration of Appellants’ collective project Rights, this Court should lift the stay to establish and protect Appellants’ Rights, because the state courts are not providing Appellants a remedy under state law.
B. The 1903 proceeding was a sham proceeding to deprive Appellants’ Rights and as such was a nullity.
The 1903 proceeding was a sham to create a default and forfeiture, and as such, was a nullity. As Justice Frankfurter stated, “The sham divorce was a nullity, no more binding on the Vermont courts than would have been a private letter to the lady by the local Florida judge.”, Cook v. Cook, 342 U.S. 126, 130-131, 72 S.Ct. 157, 96 L.Ed. 146 (1951).
This Court in Hydro-Tech v. Sundstrand Corp., 673 F.2d 1171, 1176, 1982-1 Trade Cases 64,646 (10th Cir, 1982) adopted the definition of a sham proceeding enumerated by the U.S,Sup.Ct. in California Motor Transport v. Co. v. Trucking Unlimited, 404 U.S. 508, 509-16, 92 S.Ct. 609, 611-14, 30 L.Ed.2d 642 (1972), for purposes of application of the Sherman Antitrust Act of 1890, as “litigation activities where there was a pattern of baseless, repetitive claims and where the litigation resulted in barring competitors from meaningful access to adjudicatory tribunals”:
Our particular inquiry thus narrows to the question of whether the allegation in the instant complaint, that Sundstrand initiated its earlier action against Hydro-Tech ‘without probable cause,’ is sufficient to bring the claim within the ‘sham exception’., Hydro-Tech v. Sundstrand Corp., Id. at 1175.
There may be no better example of a pattern of baseless, repetitive claims where the litigation was initiated without probable cause and resulted in barring a competitor from meaningful access to adjudicatory tribunals than the U.S’ legal actions between 1897 and 1909 to prevent RGD&IC, RGI&LC, and Appellants, from constructing and establishing its irrigation system or defending their Rights before the courts. The U.S.’ actions put both companies out of business and enabled the U.S. to seize Appellants’ Rights in order to establish its monopolistic control over the waters of the RG, as confirmed by several historians (Aplt’s Prop. Supp. App. at. 250-58, 259, 295-305).
C. The USDC erred by not applying the doctrine of unclean hands to bar the U.S’ repetitive use of litigation to prevent Appellants from establishing their Rights.
Hydro-Tech Corp. v. Sundstrand Corp., supra at 1171(citing California Motor Transport Co v. Trucking Unlimited, 404 U.S. 508, 513, 92 S.Ct. 609, 30 L.Ed.2d 642 (1978)) stated:
[A] pattern of baseless, repetitive claims may emerge which leads the fact finder to conclude that the administrative and judicial processes have been abused.” That may be a difficult line to discern and draw. But once it is drawn, the case is established that abuse of those processes produced an illegal result, viz., effectively barring respondents from access to the agencies and courts.
The pattern of actions by the U.S. between 1896 and the present constitutes such abuse of legal processes that produced an illegal result, namely the tortious seizure of Appellants’ Rights by unclean hands and trespass and the prevention of any adjudicaition of these prior rights.
The Territorial federal courts’ and U.S. Supreme Court’s condonation of and/or participation in the U.S.’ judicial actions from 1897 to 1909 further supports a finding that the U.S. acted with unclean hands.
The USDC erred when it failed to apply the doctrine of unclean hands to bar the U.S. and its surrogates from using judicial processes to deny Appellants the opportunity to establish their Rights.
D. The District Court failed to recognize and apply the Federal Act of March 3, 1891 in a full and fair trial on the merits.
There remains an unanswered question and dispute whether Appellants vested title to property rights under the federal Act of March 3, 1891, Sec. 18, by completion of works within five years of 1895.
The 1903 Territorial district court on page 3 of its May 21, 1903 forfeiture decision found:
“that the said defendants (RGD&IC and RGI&LC, Ltd.) have not completed its said reservoir or said ditch, or any section thereof, within five years after the location and said ditch line, or within five years after the approval of the same by the Secretary of the Interior; … and that the defendant had not complied with the requirements of the Act of Congress, approved March 3, 1901 (sic 1891) under which the same were filed but has failed to construct or complete within the period five years after location of the said canal and reservoir any part or section of the same.”
(Aplt. Prop. Supp. App. at 215).
Since the state courts dismissed Appellants’ collective claim to Rights, and refuse to review the 1903 federal forfeiture, only the federal courts can address the completion issue under the Act, which is the threshold issue of the adjudication. This issue was before the federal court 15 years ago when it stayed the USDC preceding, causing further delays in the adjudication and cost to appellants.
E. The 1903 court lacked jurisdiction of Appellants, the subject matter and the specific issue, so its purported forfeiture of Appellants’ Rights was a nullity. Sundance Mechanical and Utility Corp. v. Atlas, 109 N.M. 683, 686, 789 P.2d 1250, 1253 (1990) (citing Heckathorn v. Heckathorn, 77 N.M. 369, 371, 423 P.2d 410, 412 (1967); In re Field’s Estate, 40 N.M. 423, 427, 60 P.2d 945, 947 (1936) Sundance Mechanical and Utility Corp. at 686 stated: “There are three jurisdictional essentials necessary to the validity of every judgment: jurisdiction of parties, jurisdiction of subject matter and power or authority to decide the particular matter presented.” “Jurisdiction of the subject matter and of the parties is the right to hear and determine the suit or proceeding in favor of or against the respective parties to it,”
1. Dr. Boyd’s joinder was required for the 1903 court to have subject matter jurisdiction of the Rights owned by Dr. Boyd as receiver for the debenture holders. “An adjudication to which a receiver is not a party will not bind him or any other party of interest.” New York Municipal Rwy. v. Holliday, 189 A.D 814, 819, 179 N.Y.S. 238, (N.Y. App. Div. 1919); Seattle, R &S Ry. Co. v. City of Seattle, 93 Wash 94, 95, 145 P. 54, 55, 1914 Wash. LEXIS 1579, 1580 (1914) (headnote 2 states “In proceedings by a city to condemn property of a railroad company, which was in the hands of receivers, the receivers are necessary parties defendant”).
Since Dr. Boyd was not joined, the 1903 proceeding lacked jurisdiction of the Rights owned by the debenture holders.
The U.S. knew the debenture holders owned the Rights because the U.S. pleaded in 1923 that upon RGI&LC’s liquidation in 1900, RGI&LC conveyed its assets to Dr. Boyd, as receiver for the debenture holders (who thereby became the owners of the Companies’ Rights) to successfully defeat diversity jurisdiction in the World Court. The U.S. claimed that Dr. Boyd, as receiver for the debenture holders, was the owner of the Companies assets and thus the real party in interest and since he was a U.S. citizen, the World Court lacked diversity jurisdiction, Rio Grande Irrigation and Land Company, Ltd. v. U.S., Volume VI, 131, 135 (1923), Reports of International Arbitral Awards, United Nations.
2. Also, the Territorial court denied itself jurisdiction of the Claimants and their Rights in 1902 when it denied the Territory of New Mexico’s Petition to Intervene to protect the farmers’ Rights (Aplt. Prop. Supp. App. at 174).
3. Lack of Jurisdiction of the matter presented by the pleadings.
“The court must not only have jurisdiction of the persons and of the general subject matter, but the particular matter acted upon must be within the issues presented by the pleadings; or, as in this case, by a claim duly filed as the statute directs.” Reynolds v. Stockton, 140 U.S. 254, 11 S. Ct. 773, 35 L.Ed. 464; Beals v. Ares, 25 N.M. 459, 185 P. 780. “This does not apply, of course, to cases where the questions are actually litigated in an adversary action when all facts and law are not considered. In such cases the pleadings will be treated as having been amended to cover all of the issues litigated.” Reynolds v. Stockton, supra; In re Field’s Estate, 40 N.M. 423, 60 P.2d 945 (N.M., 1936). Since the Appellants’ ownership of Rights was not made an issue in the pleadings, the question of their ownership was not before the 1903 court.
Lacking the three elements of jurisdiction, the 1903 decision, decision in RGD&IC v. U.S., 215 U.S. 266. (1909), and the U.S. Court of Claims decision in Boyd, v. United States, supra, are all nullities.
Issue 2: The USDC Improperly Applied Res Judicata To Bar Appellants’ Claims In This Case.
Boyd presented sufficient evidence to demonstrate that the 1903 forfeiture decision did not include the four elements necessary for a preclusive res judicata decision.
The party asserting res judicata must satisfy the following four requirements: “(1) [t]he parties must be the same or acting in their same capacities, (2) the cause of action must be the same (3) there must have been a final decision in the first suit, and (4) the first decision must have been on the merits.” City of Sunland Park v. Macias, 2003-NMCA-098, ¶18, 134 N.M. 216, 75 P.3d 816 (quoting Bennett v. Kisluk, 112 N.M. 221, 225, 814 P.2d 89, 93 (1991), Kirby v. Guardian Life Insurance Co. of America, 2010-NMSC-014 ¶61, 148 N.M. 106, 123, 231 P.3d 87, 104.
Res judicata prevents a party or its privies from repeatedly suing another party for the same cause of action when the first suit involving the parties resulted in a final judgment on the merits. Deflon v. Sawyers, 2006-NMSC-025, ¶ 2, 139 N.M. 637, 137 P.3d 577. Res judicata applies if three elements are met: (1) a final judgment on the merits in an earlier action, (2) identity of parties or privies in the two suits, and (3) identity of the cause of action in both suits. Santana v. City of Tulsa, 359 F.3d 1241, 1246 n. 3 (10th Cir.2004); see also Restatement (Second) of Judgments § 24(1982), Rosette, Inc. v. United States, 2007 NMCA 136, 145-146, 169 P.3d 704, 713-714 (2007).
As to the third and fourth elements, to bar a claim by res judicata, there must have been a full and fair opportunity to litigate the claim to a final decision in the earlier proceeding, Potter v. Pierce, 2015-NMSC-002, ¶1.
Because the 1903 proceeding provided Appellants no opportunity to litigate their claimed Rights, it did not satisfy the third and fourth elements necessary to form a basis for res judicata in this adjudication.
Since all four elements necessary for a finding of res judicata were missing from the 1903 proceeding, namely the same parties, same issues, a full trial, and a final decision were missing in the 1903 proceeding, it cannot be a res judicata decision and bar Appellants’ from establishing their Rights in the current adjudication.
The USDC’s and State courts misapplication of res judicata for the last 15 years has improperly excluded Appellants’ claims from the adjudication. It is hoped that this Court will review the Appendices and take action to prevent another fifteen years of delay and procedural inadequacies.
Issue 3: The Colorado River Doctrine does not support abstention in this case.
Colorado River Water Conservation District v. U.S., 424 US. 800, 813 96 S.Ct. 1236, 47 L.E.2d 483 (1976) holds that “abstention from federal jurisdiction is the exception, not the rule.” Colorado River at 813 cites approvingly County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-189, 79 S.Ct 1060, 1063, 3 L.Edf.2d 1163, 1166 (1959), as follows:
The doctrine of abstention, under which a District Court may decline to exercise or postpone the exercise of jurisdiction, is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it. Abdication of the obligation to decide cases can be justified under this doctrine only in the exceptional circumstances where the order to the parties to repair to the state court would clearly serve an important countervailing interest.
Colorado River continues, id. at 813-814 (citing Alabama Pub. Serv. Comm’n. v. Southern R. Co., 341, 361, 71 S.Ct. 762, 774, 95 L.Ed. 1002, 1015 (1951)): “[I]t was never a doctrine of equity that a federal court should exercise its judicial discretion to dismiss a suit merely because a State court could entertain it.”
Colorado River then states at 814, that abstention is only appropriate in three general categories: (a) in cases presenting a federal constitutional issue which might be mooted or presented in a different posture by a state court determination of pertinent state law (citing County of Allegheny v. Frank Mashuda Co., supra, 360 U.S. at 189, 79 S.Ct., at 1063, 3 L.Ed.2d, at 1166); (b) where there are difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case (citing Louisiana power & Light Co., v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959) (the scope of the eminent domain power of municipalities under state law) or when the “exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern”, citing Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943) “where the Court held that a suit seeking review of the reasonableness under Texas state law of a state commissioner’s permit to drill oil wells should be dismissed by the District Court, where the State had established its own elaborate review system for dealing with the geological complexities of oil and gas fields.”
( c) Abstention is appropriate when federal jurisdiction is invoked to restrain state criminal proceedings, citing Younger v. Harris, 401 37, 91 S.Ct. 746, 27 L.Ed.669 (1971).
In Colorado River, supra. at 814 the Court determined that the case did not fall within the first category because it did present a federal constitutional issue for decision. Colorado River, at 815-816 determined that the case did not fall within the second category because state law (Colorado’s prior appropriation law) was well settled and there were no questions bearing on state policy presented for decision, explaining, id. at 815-16, “To be sure, the federal claims that are involved in the case go to the establishment of water rights which may conflict with similar rights based on state law. But the mere potential for conflict in the results of adjudication, does not, without more, warrant staying exercise of federal jurisdiction.” (citing Meridith v. Winter Haven, 320 U.S. 228, 64 S.Ct. 7, 88 l.Ed. 9 (1943).
After finding that the case did not fall within any of the three categories enumerated above, the Colorado River court still found abstention appropriate by considering several other factors, mainly the desirability of avoiding piecemeal litigation, citing Brillhart v. Excess Ins. Co., 316 U.S. 491, 495 , 62 S.Ct. 1173, 1175, 86 L.Ed. 1620, 1625 (1942), and stating, Colorado River, supra at 819, “Indeed, we have recognized that actions seeking allocation of water essentially involve the disposition of property and are best conducted in unified proceedings” and, more importantly, stating that the McCarran Amendment “evinced a clear federal policy to avoid piecemeal adjudication of water rights in a river system.”
Other factors the Court in Colorado River, supra at 820, considered in weighing in favor of dismissal were the lack of extensive proceedings in the District Court prior to dismissal and whether the state proceeding was, in some respect, inadequate to resolve the federal claims and found that the policy underlying the McCarran Amendment of avoidance of piecemeal adjudication, “justified the District Court’s dismissal in this particular case.”
The decision to abstain drew strong dissents from four Justices. The main dissent by Justices Stewart, with Blackmun and Stevens concurring, relied upon the Court’s own language, “federal courts have a ‘virtually unflagging obligation …to exercise the jurisdiction given them.’” and “nothing in the abstention doctrine, ‘in any of its forms’, justified the District Court’s dismissal of the Government’s complaint. I agree.” Colorado River, supra at 821.
The facts and issues in the instant case are dissimilar to the facts and issues present in Colorado River,supra, so they weigh against abstention of federal jurisdiction, such as a lengthy history of litigation in the federal court and the fact that the state court dismissal of Appellants’ claim to collective Rights means that there is no parallel litigation pending in state court.
Therefore, as explained below, it was error for the USDC to deny Appellants’ Motions to Intervene and Lift Stay (Aplt. App. at 100), especially in light of this Court’s recommendation in its 2002 opinion in United States v. City of Las Cruces, 289 F.3d 1170, 1192-1193:
“Accordingly, we remand to the district court to decide on an appropriate remedy considering the extent to which its decision to decline jurisdiction depended on predictions about the scope of the state proceedings, the possibility of delay or procedural inadequacy in the state proceedings, the possibility that another federal action will be time-barred should the instant case be dismissed and any other appropriate factor.”
It appears that this Court by 2002, in United States v. City of Las Cruces, foresaw the need for continued federal jurisdiction in the USDC to insure claimants a remedy from further delay and procedural inadequacies in the state proceeding when it recommended a stay instead of dismissal.
The failure of the state courts and the USDC to properly address whether Appellants completed works under the Act has caused a further 15 year delay since the USDC last addressed that issuem when raised by Boyd in 1998 (See Doc. 137) and 13 years since this Court last considered the issue.
Recent decisions in the state courts have created further procedural inadequacies, federal constitutional issues, and delays, that weigh in favor of federal jurisdiction and also have exposed the state adjudication’s failure to meet the main policy underlying the McCarran Amendment and the deciding factor supporting abstention in Colorado River Water Conservation District v. U.S., supra as enumerated in Brillhart v. Excess Ins. Co., 316 U.S. 491, 495 , 62 S.Ct. 1173, 1175, 86 L.Ed. 1620, 1625 (1942) of avoiding piecemeal litigation. The state courts have caused piecemeal litigation in two respects: first, by disregarding Appellants’ claim of tenancy-in-common ownership of Rights and, instead of addressing Appellants’ tenancy-in-common claimseparating the Claimants from Boyd and ordering each claimant into a separate sub-file adjudication and thereafter inter se trials among all claimants before the tenancy-in-common ownership issue is resolved and second, by dismissing Boyd’s claims, which has and will create piecemeal litigation, countless years of delay and, likely, different results regarding different Claimants’ priority date claim, because the state is offering consent judgments with a 1906 priority date to each claimant. The State’s procedure of litigating individual claims in separate sub-files may create different priority dates among the Claimants in the adjudication, which will require additional litigation and significant delays in determining the Appellants’ Rights affecting some or all Claimants that are found to have project and water rights that pre-date the U.S.’ alleged project commencement date of March 1, 1903.
The federal court is the only venue in which to litigate the issue of ownership of the project Rights because all the parties who claim project rights are currently in this federal case, namely the U.S.. EBID, EPWUID, and Appellants, whereas the NMDC has dismissed Boyd from the adjudication and has refused to consider Claimants’s tenant-in-common claim with Boyd’s RGD&IC Rights.
Issue 4: The state court and USDC’s erred by not applying N.M. statutes and law, resulting in delay and piecemeal litigation in the adjudication.
The Treaty of Guadalupe Hidalgo of 1848 signed February 2, 1848, the Desert Land Acts (the Act of July 26, 1866, § 9), the amending Act of July 9, 1870, § 17, and the Desert Land Act of 1877, the Act of March 3, 1891 (c. 561, 26 Stat. 1095); all recognized and provided for privately financed and owned irrigation systems).
Ownership of water rights in New Mexico is based upon the prior appropriation of water, also known as the Colorado Doctrine, Keeney v. Carillo, 2 N.M. 480 (1883), Snow v. Abalos, 1914-NMSC-022, ¶8, 18 N.M. 681, 140 P. 1044 (1914), Alb. Land and Irrig. Co, v. Gutierrez, 10 N.M. 177, 182, 61 P. 357 (1900), U.S. v. City of Las Cruces, 289 F.3d 1170, 1176 (2002) (stating, “Those who first appropriate water for beneficial use have rights superior to those who appropriate water later.” citing N.M. Const. Art XVI, §2.)
New Mexico has constitutionally protected its PAD, N.M. Const. Article XVI, Section 2 (“priority of appropriation shall give the better right”), N.M. Constitution, Article XVI, §1 (“All existing rights to the use of any waters … are recognized and confirmed”) and its statutes that incorporate the PAD; §72-1-2 NMSA 1978 (1907); §72-4-17 NMSA 1978, and 72-5-33 NMSA 1978, recognizing the seniority of prior appropriated rights.
Many Claimants and their predecessors have diverted water for hundreds of years (Applts’ Prop. Supp. App. at 175).
A priority date is a necessary element of every adjudication decree, §72-4-19 NMSA 1978.
When a group of individuals settle previously unirrigated lands and dig an irrigation ditch, they appropriate diversion rights as tenants-in-common and each landowner appropriates water rights as of the date of first beneficial use of water on that landowner’s land, Candelaria v. Vallejos, 13 N.M. 146, 146, 81 P. 589 (1905) and Snow v. Abalos, 1914-NMSC-022, ¶19-20 (NM 1905), 18 N.M. 681, 140 P. 1044 (NM 1914). “The ditch or carrier system, having been constructed by the joint labors of all the water users is owned by them as tenants-in-common; each having a common interest in the same.” Snow v. Abalos, Id. ¶14.
Once established, tenant-in-common property rights can only be altered by unanimous consent or due process of law, Candelaria v. Vallejos, supra at 154 (“We are of opinion that under that system he remained as any other citizen, vested with full rights of property, sacred against any alienation except by his consent or by due process of law.”).
Such unanimous consent occurred in 1893 when a group of citizens in the LRG formed RGD&IC to create a modern irrigation system with a large storage reservoir to capture, store and deliver both the landowners’ prior appropriated irrigation water and the excess RG floodwater to irrigate new lands, in conformity with the Acts (Aplt. Prop. Supp. App. at 25-63). If there had been no unanimous consent there would have been litigation and no connection of landowners’ ditches to the Canal.
The landowners’ collective Rights became vested when they formed RGD&IC on January 12, 1893, and commenced constructing works under New Mexico’s RBD, §72-1-2 NMSA 1978.
RGD&IC initially lacked the finances to construct its planned irrigation system, but soon Dr. Nathan E. Boyd committed to finance RGD&IC. An English company named RGI&LC was formed to sell debentures in England, collateralized with the assets of RGD&IC. The sales proceeds were loaned to RGD&IC to build the project see RGI&LC, Ltd. v. U.S., Id. at pp. 132-135. RGD&IC commenced construction in 1896. A diversion dam near Fort Selden to divert water into a six mile long canal that transported water to the three main ditches on the east side of the river was completed by 1897 and members of the three main community ditches agreed by unanimous consent to alter the headings of their community ditches from the river to RGD&IC’s Leasburg Canal (Aplts’ Prop. Supp. App. at 88, 90, and 93-99 [1897 picture of men building dam]).
When they relocated their ditch headings to the Leasburg Canal, the ditch members integrated their diversion rights into RGD&IC’s project and altered their tenancy-in-common interest from owning only the diversion right for their individual community ditch into a tenancy-in-common interest that they shared with all current and future irrigators in the entire RGD&IC project with a January 12, 1893 priority date, Candelaria v. Vallejos, 13 N.M. 147 (1905) and Snow v. Abalos, 1914-NMSC-022, 18 N.M. 681, 140 P. 1044 (N.M. 1914) at ¶ 19 and 20.
Perhaps the strategy adopted by the USDC and the NMDC is for the USDC to dismiss Appellants’ from its jurisdiction and let the NMDC proceed in SSI#104 to find that the U.S. owns all Rights and then further delay Appellants for years of litigation in sub-files, with the expectation that without a remedy to protect their Rights many Appellants will cease fighting and abandon their Rights. We ask the 10th Circuit to recognize that the PAD is the only legal and fair way to allocate the historic water rights related to the RG and that the Appellants hold some of those Rights and their Rights deserve to be protected as is just and fair under the U.S. Constitution.
The great danger lurking in the USDC’s and NMDC’s strategy to grant the U.S. all project and water rights and administrative control of the RG is that the U.S. lacks a legally sufficient appropriation on which to rest its claimed ownership for its works because it illegally seized control and possession of Appellant’s Rights. Since it lacks a legal appropriation to the works it possesses, the U.S.’s is a trespaaser and its claim cannot withstand a challenge based in law, which means attacks on the U.S.’ claimsof Rights may continue forever.
The U.S. filed a reservation in 1906 under §72-5-33. A., NMSA 1978.
NM’s appropriation statute that applies to all persons is §72-5-1, NMSA 1978. The U.S. never obtained a permit pursuant to §72-5-1, NMSA 1978 (Aplts’ Prop. Supp. App. at 248-249).
Also, §72-5-33. A., NMSA 1978 requires a determination of what rights were appropriated prior to a U.S. reservation (“the waters so described and unappropriated … shall not be subject to further appropriation.”), §72-5-33. A., NMSA 1978. The adjudication has yet to institute litigation to determine what rights were unappropriated when the U.S. filed its reservation.
The U.S. Reclamation Service’ own reports (Aplts’ Prop. Supp. App. at 227-230) evidence that over 31,000 acres were irrigated prior to the U.S.’ construction of its project. It is unfathomable how the NMDC and the USDC could grant all the Rights in the RG to the U.S. without attempting to determine if there were appropriations of rights before 1903 or 1906, as required by §72-5-33. A., NMSA 1978. Such a variance from the clearly expressed intention of the statutes and N.M.’s Constitution forces one to question the USDC’s statement. “In sum, the state courts are expertly adjudicating all of these water rights.” (App. at 229).
Until the state or federal courts determine what rights were appropriated and vested under NM statutes, chronologically from time immemorial to present, as other adjudications have, there will be many more years of delay in this adjudication.
Section 8 of the Reclamation Act, requires the U.S. to follow state laws regarding its appropriation of un-appropriated water. Those who divert water from a stream in New Mexico must obtain a permit for such diversion, Carangelo v. Albuquerque-Bernalillo City. Water Users’ Ass’n, 2014-NMCA-032 (2014).
The U.S. has yet to produce any evidence that it obtained a permit pursuant to §§ 72-5-1 et seq. N.M.S.A. 1978 for its project. Alternatively, evidence strongly suggests that the U.S. never obtained a permit to divert water or build its works or appropriate any water rights in New Mexico (Aplts’ Prop. Supp. App at 248-249).
When Appellants raised this fact issue [whether the U.S. ever met N.M.’s statutory requirements for appropriation of water rights under §§ 72-5-1 et seq. N.M.S.A. 1978 (Aplts’ Prop. Supp. App. at 406-417)], the NMDC denied their Motion (Aplt. Prop. Supp. App. at 459-460).
The USDC erred when it affirmed the NMDC’s grant of all the Rights to the U.S. without holding a trial on the issue of whether the U.S. met NM’s then enacted laws in its appropriation of Rights, especially since there exists direct evidence suggesting the U.S. did not meet New Mexico’s then enacted appropriation statutes (Aplts’ Prop. Supp. App at 248-249).
Another problem with the adjudication is the refusal of the NMDC to hold a trial on any issue related to Appellants’ Rights. The issue it is trying in SSI #104 is the priority date of the U.S.’ rights. It appears that the NMDC has already determined to disregard any claims that predate the U.S.’ project and it is notrequired to make the U.S. prove that it appropriated its rights in accordance with N.M.’s law, as required by the Reclamation Act.
The failure of the USDC to hold a full trial on the merits before granting the U.S. all the RG Rights and its refusal to provide Appellants and other claimants the opportunity to establish their pre-federal rights and challenge the U.S.’ claims is a denial of due process and an unconstitutional taking of Appellants’ Rights without just compensation and contrary to the intent of the McCarran Amendment of 1952 to hold federal claims accountable.
The USDC erred when it failed to acknowledge that the NMDC erred when it held that Boyd owned no Rights because it did not own works (Aplts’ Prop. Supp. App. at 369) for two reasons: first, an irrigation company can appropriate water rights without applying them directly to beneficial use, Klamath Irrigation Dist. v. United States, 348 Or. 15, 227 P.3d 1145, 1152 (Or. 2010), citing Nevada Ditch Co. v. Bennett, , 30 Or. 59, 98-102, 45 P. 472 (1896), Albuquerque Land and Irrigation Co. v. Gutierrez, supra, 181, 361, affirmed 188 U.S. 545 (1903). Also §72-1-2 NMSA 1978, allows irrigation companies to appropriate water rights through contracts with beneficial users, which is what RGD&IC did (Aplt’s Prop. Supp. App. at 92). Boyd, as receiver of RGI&LC, became owner of tens of thousands of un-irrigated acres previously conveyed to RGD&IC in exchange for contracts with RGD&IC to provide water storage and delivery contracts for the landowner’s remaining lands (Aplt. Prop. Supp. App. at 105. So Boyd was also a landowner with beneficial claims to water (Aplt’s Prop. Supp. App. at 217-220).
After seizing the Appellants’ Rights and works, the U.S. coerced the landowners to sign subscriptions and contracts in 1905 assigning their right of management of their water works under the threat of denying delivery of their water if they did not assign control of their works to the U.S. and agree to pay for the U.S.’ project, before the U.S. agreed to build the Rio Grande Project. The coercion is proven by the fact that the farmers were in the process of building their system through RGD&IC at no cost to the farmers with financing underwritten by English investors when the U.S. seized its works by improprer litigation in 1897. Boyd signed contracts in 1905 (Aplt’s Prop. Supp. App. at 217-220), which raises the question of how could Boyd’s Rights be forfeited in 1903 and then be acquired by the U.S.in 1905. The inconsistency of these two conflicting issues has recently been raised in the adjudication by Claimants in their Motion for Threshold Issue (Aplt’s Prop. Supp. App. at 492-498).
Issue 5: The USDC erred in its application of the Reclamation Act.
A. Errant references to the Reclamation Act.
The USDC erred in referring to the Reclamation Act of 1902. On page 7 of USDC’s December 2, 2014 Memorandum Opinion, the Court states, “Boyd points to the 1903 ruling in which the U.S.Sup.Ct. declared that the water rights claimed by Boyd’s predecessor, Dr. Nathan Boyd, were forfeited under the Reclamation Act”. See US. V. RGD&IC, 13 N.M. 386, 85 P. 393, (1906), and RGD&IC v. U.S., 215 U.S. 266, 275-78 (1909)(upholding default judgment of forfeiture under Reclamation Act)” (App. at 230).
This statement is incorrect in three respects. One, The 1903 ruling was not rendered by the U.S.Sup.Ct. Two, the 1903 proceeding did not forfeit any rights under the Reclamation Act. The 1903 decree stated that the Companies’ rights were forfeited for failing to respond to the U.S.’ Supplemental Complaint and complete works within five years pursuant to the Act. Third, in reading the two opinions cited by the USDC there is no reference in either to a forfeiture prevision under the Reclamation Act. Four, the 1903 decree did not forfeit any of Boyd’s rights and Boyd was not a party to the 1903 proceeding. One mistake is not excusable, but four mistakes in one sentence are troubling.
The Court’s next statement is also wrong, “Dr. Boyd’s company, the RGD&IC,” The RGD&IC was started by a group of business men in El Paso. Its assets were transferred to RGI&LC and then to Boyd as receiver for the debenture holders, so RGD&IC was not Boyd’s company. It seems that the USDC obscured or confused facts.
The 1923 Hague Tribunal also made no reference to a forfeiture of Boyd’s Rights and actually infers that Boyd still owns the Companies’s rights , as receiver for the debenture holders, RGI&LC, Ltd. v. U.S., RIAA, supra. Likewise, a more careful reading of the 1903 proceeding, would confirm that it never forfeited the farmers’ claims because they and their rights were excluded from the 1903 proceeding (Aplt. Prop.Supp. App. at 174).
A review of the Reclamation Act discloses no provision for forfeiture of rights, FIFTY-SEVENTH CONGRESS. Sess. I. CH. 1093 — June 17, 1902 [Public, No. 161].
B. The U.S. never acquired Appellant’s Rights in accordance with §7 of Reclamation Act, which states:
“§7, That where in carrying out the provisions of this Act it becomes necessary to acquire any rights or property, the Secretary of the Interior is hereby authorized to acquire the same for the United States by purchase or by condemnation under judicial process.”
The U.S. failed to acquire Appellants’ Rights by purchase or by constitutional condemnation as required by Section 7 of the Reclamation Act , Sweet v. Rechel, 159 U.S. 380, 401, 16 S.Ct. 43, 40 L.Ed. 188 (1895) (an attempted taking by a statute that does not provide for reasonable and prompt compensation is void).
City of Monterrey v. Del Monte Dunes, 526 U.S. 687, 703 (1999) states that regulatory taking decisions that fail to provide adequate provision for compensation or procedural due process by which compensation may be sought “are not only unconstitutional but unlawful and tortious as well”.
Since the U.S. did not constitutionally condemn or purchase Appellants’ Rights or provide due process, its regulatory taking was unconstitutional, tortious, and lacked conformity with Section 7 of the Reclamation Act, Sweet v. Rechel, supra, at 401.
C. The U.S.’ seizure of property rights violated Section 8 of the Reclamation Act, which states:
“SEC 8. That nothing in this Act shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder, and the Secretary of the Interior, in carrying out the provisions of this Act, shall proceed in conformity with such laws,”
The USDC and NMDC failed to consider whether the U.S. interfered with any property right Appellants previously appropriated pursuant to Territorial Acts or under the Common Law by completion of works and the diversion rights associated with their ancient diversion ditches, so compliance with Section 8 of the Reclamation Act has never been determined by a Court.
Since the instant case presents important federal constitutional questions and federal and state law questions that were not addressed by the state court adjudication, the scale should tip in favor of this Court assuming federal jurisdiction, Colorado River Water Conservation District v. U.S., supra.
Issue 6: The state courts and USDC erred when they did not view the Appellants’ evidence in its best light and as well pleaded.
The USDC and NMDC (“Courts”)s refusal to consider Appellant’s evidence in its best light, conflicts with Reinhardt v. Rauscher Pierce Securities Corp, 83 N.M. 194, 490 P. 2d 240 (Ct. App. 1971), N.M. Laws 1891, Chapter 71, Section 1 and 2; N.M. Const., Article VXI, Section 1 (“All existing rights to the use of any waters in this state for any useful or beneficial purpose are hereby recognized and confirmed.”) and §72-1-2 NMSA 1978, (1907) (“In all cases of claims to the use of water initiated prior to March 19, 1907, the right shall relate back to the date of the claim, upon the diligent prosecution to completion of the necessary surveys and construction for the application of the water to a beneficial use.”), and AL&IC v. Gutierrez, supra.
Also,, the Courts erred by not treating RGD&IC’s January 12, 1893 notice of commencement of construction and appropriation of storage, project rights, and the unappropriated RG floodwaters as prima facie evidence of vested property rights (Aplts’ Prop. Supp. App. at 25-49) pursuant to Chapter 71, Section 2, Terr. Act of Feb. 26, 1891, (Aplts’ Prop. Supp. App. at 465 and 468).
The Courts’ also erred by refusing to consider that the U.S.’ commenced repetitive legal proceedings with an improper motive and relied upon sham allegations to destroy RGD&IC’s assets and business in 1897, so the U.S. could take control of the water RGD&IC had appropriated to fill its reservoir at El Paso (Aplt. Prop. Supp. App. at 140) and then, after five year of litigation the U.S. procured its purported forfeiture of Appellants’ Rights by conspiracy, trespass, and fraud in 1903, which conflicts with Keeney v. Carillo, 2 N.M. 480 (1883) (one can not gain any right to water rights by trespass).
When the government takes property, the failure to provide a full and fair trial to contest public purpose or just compensation amounts to a denial of due process and an unconstitutional deprivation of property rights, Sweet v. Rechel, 159 U.S. 380, 401 (1895), U.S. Const. Amendment V, N.M. Const. Art. II, §18 and §20 and Article 7 of the Reclamation Act of 1902.
Appellants have never been given an opportunity in a full and fair trial to establish their historic claims, which conflicts with §72-4-17 NMSA 1978 (1907).
The NMDC acknowledged in its February 24, 2012 Order that RGD&IC alleged completion of works. This issue of completion and Appellants’ other allegations raised genuine issues of material fact sufficient to defeat the U.S.’ Motion for Summary Judgment claiming all the Rights.
A party’s full and fair opportunity to litigate is the essence of res judicata, Potter v. Pierce, Id. at ¶15, citing Brooks Trucking Co. V. Bull Rogers, Inc., 2006-NMCA-025, ¶11. 139 N.M. 99, 128 P. 3d 1076. Without a full and fair trial providing Appellants the opportunity to establish their Rights there can be no finding of res judicata. The USDC erred when it affirmed the state adjudication’s dismissal of Boyd’s claims based upon the1903 proceeding being res because the 1903 proceeding did not provide Appellants a full and fair trial to establish their Rights or meet any other requirements for res judicata.
The state and federal district courts’ failure to view the record in the light most favorable to Appellants is error, Reinhart v. Rauscher Pierce Securities Corp., 83 N.M. 194, 490 P.2d 240, 242 (Ct. App. 1971).
The series of actions taken by the U.S. over the last 118 years to prevent the Appellants from establishing their rights in any court of law amount to collateral fraud, Rutherford v. Buhler, 89 N.M. 594, 555 P.2d. 715 (Ct. App. 1976).
Issue 7: The state court and USDC through their orders have improperly narrowed the scope of the adjudication, caused delays and procedural inadequacies and created piecemeal litigation in the state adjudication.
The USDC erred by condoning the procedures adopted by the state courts that have created piecemeal litigation in the adjudication, which was the paramount consideration in Colorado Riverand Moses Cone Memorial Hosp. v. Mercury Constr’n Corp., supra at 19.
In this case the state court has already ruled on two important issues, namely whether Appellants share a tenancy-in-common in the Rights and whether Boyd has an claims.
The state courts dismissed Boyd’s claims (Aplt’s Prop. Supp. App. at 928) and the Claimants’ Motion to Set a Stream Issue to determine the Appellants’ ownership of Rights as tenants-in-common (Aplt’s Prop. Supp. App. at 765-770 and 913).
Since the State courts will not provide Appellants’ a remedy for the U.S.’ trespass, the federal court is the only jurisdiction left where Appellants can seek recovery for the U.S.’s actions that Appellants claim damaged their property rights established under federal law. Since there is no parallel proceeding available to the Appellants in the state courts to protect their claims, there is no conflict over jurisdiction between the court systems.
Likewise, if Appellants’ Motions to Lift Stay and to Intervene in USDC No. 97-CV-803 are dismissed pursuant to the USDC’s Orders (App. 188 to 204 and 224 to 232); the Claimants and their claims to a tenancy-in-common Right will “be out of court” with no remedy by denial of due process and Appellants’ attempt to protect their property right will be forever barred.
It makes no sense for the USDC to affirm the NMDC’s grant of all the Rights to the U.S. without first considering if the farmers and Boyd vested pre-federal rights and whether other rights were vested by pre-federal appropriations , as required by §72-5-33 NMSA 1978.
There is compelling evidence to support the fact that there was irrigation in the LRG before March 1, 1903, the U.S.’ new priority date, Snow v. Abalos, supra (1914), Candelaria v. Vallejos, supra (1995), State Engineer v. Holquin, 95 N.M. 15, 16, 618 P.2d 359, 30 (1980), U.S. v. RGD&IC, supra (1898), Keeney v. Carillo, supra (1883).
The USDC erred by affirming the procedure adopted by the NMDC to confirm all the Rights to the RG in the U.S. before considering what water and thus project rights were appropriated prior to the U.S.’ priority date, because it creates delay and piecemeal litigation (Appellants must fight the U.S.’s assertion of rights and then fight to assert their rights through sub file and inter se litigation that will go on for years, if not decades).
The USDC erred by dismissing the Appellants’ Motions because the state-court adjudication has proven to be inadequate to protect Appellants’ property rights and decide federal law questions.
“When a district state court decides to dismiss or stay under Colorado River, it presumably concludes that the parallel state court litigation will be an adequate vehicle for the complete and prompt resolution of the issues between the parties. If there is a substantial doubt as to this, it would be a serious abuse of discretion to grant a stay or dismissal at all, Moses Cone Memorial Hosp. at 28, citing McNeese v. Board of Education, 373 U.S. 668, 674-676, 83 S.Ct. 1433, 1437-38, 10 L.Ed.2d 622 (1963)`
This Court in U.S. v. City of Las Cruces, at 1192-1193 (2002) remanded this case to the USDC with instructions to “decide on an appropriate remedy considering the extent to which its decision to decline jurisdiction depended on predictions about the scope of the state proceeding, the possibility of delay or procedural inadequacy in the state proceeding, the possibility that another federal action will be time-barred should the instant case be dismissed.”
Brillhart analysis
In Brillhart at 495, Justice Frankfurter enumerated, among the factors that a district court consider,
“(W)hether the claims of parties in interest can satisfactorily be adjudicated in that proceeding, whether necessary parties have been joined… etc.” Justice Frankfurter found at Brillhart, 495-496 that, ”it appears from the record before us that the District Court did not consider whether, under applicable local law, the claims sought to be adjudicated by the respondent in this suit for a declaratory judgment had either been foreclosed by Missouri law or could adequately be tested in the garnishment proceeding pending in the Missouri state court.”
In the instant case the state courts have foreclosed any test of Appellants’ claims by not applying state or federal law to test their claims. By not addressing Appellants’ claims the USDC has narrowed the scope (only addressing the claims of the U.S.) of the adjudication, thereby creating procedural inadequacies (namely denial of due process) and causing delay, piecemeal litigation, and denial of protection of the Appellants’ property rights.
Recent decisions by the state-court confirm that the concerns expressed by this Court in its remand were correct, U.S. v. City of Las Cruces, at 1192-1193. But, in light of those concerns, the USDC, rather than accepting jurisdiction, has chosen to dismiss the Appellant’s Motions, thus setting into motion the possibility that Appellants’ claims will be time-barred.
Just as in Brillhart, it appears that the USDC has not considered the inadequacies and errors in the pending adjudication brought to its attention by the Appellants’ Motions.
Brillhart, at 497-498 held,
“We are not concerned here with the burden of proof in establishing facts as to which only the parties to the private litigation are interested. We are concerned rather with the duty of the federal courts to determine legal issues governing the proper exercise of their jurisdiction.”
This Court can share concurrent jurisdiction with a pending state court water adjudication when a federal issue must be resolved, such as Claimants’ collective pre-federal claims, In re Application for Water Rights of United States. Colo. St. Engineer, et al., 101 P.3d 1072, 1075 (Colo. 2004).
Abstention from exercise of federal jurisdiction is the exception, not the rule, Colorado River, id. at 813.
Issue 8: The USDC misapplied fraud in this case, because the U.S.’ actions amounted to a scheme to trespass on Appellants’ property.
The state courts have consistently mischaracterized Appellants’ use of the word fraud to confuse the pervasive scheme of the U.S. amounting to a sham, Cook v. Cook, supra, Hydro-Tech Corp. v. Sunstrand Corp, supra or collateral fraud, Rutherford v. Buhler, supra., with the more traditional definition of fraud, which led them to see only malpractice by RGD&IC’s attorneys on Boyd (Aplts’ Prop. Supp App. 456- 464) and dismissing Boyd’s claims of fraud by the U.S. as unimportant or a federal issue for which the state courts can provide no remedy (“any fraud the U.S. inflicted upon Boyd was subject to federal jurisdiction under the Federal Tort Claims Act (28 USC 1346(b).” (Aplts’ Prop. Supp App. 645-647).
The U.S. was a trespasser when the U.S.’ scheme resulted in the U.S. taking possession of Appellants’ right-of-way. Criminal trespass consists of “knowingly entering or remaining upon the unposted lands of another knowing that such consent to enter or remain is denied or withdrawn by the owner or occupant thereof”. §30-14-1 NMSA 1978, Criminal trespass. (NM Statutes (2014 Edition). Also see Keeney v. Carrillo, 2 N.M. 480 at headnote 4,
“they did not give up their possession; they still held on to their lands and houses and water, and they should be protected in their rights. These defendants had no business there; they were trespassers, and cannot claim any right to the water in question, in equity.”
Rather than a fraud, perhaps the U.S.’s actions would be better described as a scheme intended to create a continuing trespass, Hunter, v. Mansell, 240 P.3d 469, 477, citing 75 Amer. Jur. 2d Trespass §26 (2002), for which an action for injunction lies, City of Shawnee v AT&T Corp., 910 F. Supp. 1546, 1563 (D. Kan. 1995).
To deprive Appellants’ of the use of their property vested under the Act, would require the invoking of eminent domain or the payment of just compensation in order for the U.S. to take Appellants’ land for a public purpose, Kaiser Aetna v. U.S., 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979).
Alternatively, the NMCA stated that only the federal courts have jurisdiction to determine fraud claims against the US, (Aplts’ Prop. Supp App. 645-647). Dismissal of Appellants’ claims of Rights by the federal courts will leave Appellants no remedy to protect the property rights they claim the U.S. seized without compensation and has deprived them of, by continuing trespass.
STATEMENT OF COUNSEL AS TO ORAL ARGUMENT
Because of the complex issues presented counsel believes oral argument may be helpful to the Court.
CONCLUSION
The Appellants were never allowed to establish their Rights in a full and fair trial or to contest the jurisdiction of the 1903 court or to contest whether unanswered federal questions were improperly disregarded or that the 1903 proceeding was a sham and without effect, so their claims can not be barred by res judicata.
Likewise, the actions of the U.S. amount to unclean hands and thus the USDC erred when it did not take jurisdiction of the case to bar the U.S. from attacking Appellants claim to rights.
Because of an erroneous application of res judicata, the USDC has barred Appellants from establishing their property rights and seeking damages and ejectment, if necessary, against the U.S.
Since the state courts have dismissed Appellants claims to collective rights, there is no parallel proceeding and the federal court is the only court available to Appellants to seek protection of their claim that they appropriated pre-federal project rights in compliance with the Acts.
It appears that the USDC will not consider any conflicting claims to the U.S.’ alleged project rights, which is unfair and denies Appellants the opportunity re-open this case to establish their rights in a full and fair trial on the merits, which is why this Court proposed a stay in its 2002 decision.
Appellants request the opportunity to establish their rights in a full and fair trial on the merits and if they prevail, the opportunity to seek damages against the U.S. for the damages caused by the U.S.’ unclean hands, seizure of their Rights by improper litigation, and thus a sham proceeding and a continuing trespass since 1897.
Respectfully Submitted,
/s/ Robert S. Simon____
Robert S. Simon, Esq.
Attorney for Boyd and Pre-1906 Claimants
1415 Park Ave. SW
Albuquerque, NM 87104
(505) 246-8136